50 F. 526 -

50 F1d 526

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Case Text

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E. D.

Tennfi68ee,

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8. D. March 10,1892.)

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A, father, directeifby writ ofhabens corpus to produce bis child, before a state judge; 'eat/sed thechilcho bll'i'el:rioved'withOut of the state, and kept there in custody of an ageb;ti, subject to the, control of the father, for the purpose of defeating the jurisdictio'n of the state judge. Beld, that the child was constructively in the possession-of the father,'ailn rthat the fact of 'its beingwithollt the " state did not affect the jurisdiction of the sta,te judge to fine and imprison the father for ,qop.tempt in disobeyill,g the writ of habeas corpus. , lQl$uch case, the fine Mld hnprisonment were not "without due :Pl:OCeSS of law," and ,the circuit court of the United States has noJurisdiction of a t1etition by the ,,father for a writ of hnbert!1 corpus on that ground, whether the aotion of <the state court il;\ im,pGsing' tbe ,punlli1hlll.ent was or was not erroneous.
BA'M'E:':;'DuB PROOESS Ol!'L'Aw,

Judge. ,Th'eplaihtift' files his pl'!tHion for a writ of habel1.8 corp1L8, alleging that ,he is unlawfully imprisoned. It appears that he and: his wife have Be'p!lt'ated;thatthey have a child, who is three years and that proceedings are pending in the chancery court of the state,' by 'which Mrs.Youngseeks'adivorce fr<.IID her husband, and the custody of her clli'YM' .Febtuart26: 1892, the wife sued out a writ of habeascorp1t8agaimit ber husband aud others from the judge of a circuit CO\lrt of the state, aHegi6gthat her hrisband had the custody of the child; tbat intbe"divdrce prdceeding her husband had been attached, upon her petition', for conterh p't his disobedhmce, to the inj unction of the ch,ancellor, ,arid' the';ch'ancellor 'heard the charge of contempt on the 20th day'of FebruarYi1892j that on the Friday before this hearing .young had said that' he did not khi:l\v how the court would decide the matter, andthM he intended to rurtthe child away,so'that they could 'notg'etJ hold ot! her, pl'bVi('}'eu.thecourt should decide against him; and "that'in .execution and while the chancellor was hearing the 'matter ,of contempt, Young: had the ,child removed from this state, and beyond the chahcellor1s jcirisdictioq'. Upon this p(tition the circuit judge issued a 'writrequit'ing Young to appearbef6re him the afterchild with At the tiine. the nodnfollowing, and returnable in this case, Young, made what may '1j('!'styled a IlpllrtialrettitiV'1 but stated' that he' bad not been allowed sufficient time to make a ltilhmdcolnplete return';' 'The judge allo\'l'ed two days more. At tbe end of the two days the following order was made:

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"STATE OF TENNESSEE, HAMILTON COUNTY.

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der of the court to produce in court the body of Dorsey Young, as ordered in

In the Matter of the Petition of May Young VB. J. W. Young et als. Habeas Corpus P?'oceedings in the Court of Hamiltun Co., Tenn. "In this cause the defendant, Young, having failed to comply with the or·

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trre :Origltml tills :cause. andbaving' filelh oa27th, February; 'a partial and to the writ,'imd having again been ordered by the COUJt till: f\lliretur,n by 4 P. M., February 29. 1892. and to produce tlla body Qf ¥ oung in court. (hellavin.g;.admitted in court that said held by pne. as his subject to his order.) in of the penllJtiestflbe mflictoo in accordance to law for such disobedience to the writo(habeeuc01'pu8.and the defendant,Toung, now and ingto eompl:r with the order olthe court, ,and failing to make the return reqUired by.Mill.& subsecll. 1-3, and again filing an retUl'n, CjlpntrapictorY of the,previQus partial and incomplete return, both under satisfac:tory, reason having been given forc:lefendant's failux;e tt) Young, into court, and no ,effortto produce her haviog beEin maM. and defendant still willfully refusing to comply with the order of the court in this CI(se. it is that said Young now stand in contempt of"the court, and that:he be filled the sum :of fifty, dollars. andimprisoued hl,the countyjaU ten days, or until he pprges himself of contempt by r ,m.,ak, a retur,n ,sullicie,,ot prodllcin,gin, C,0Llrt t,he,,;bOd,Y, Of, D,', orsey law him from the and further be, tinued until the llth d'ay' of March. 1892; tor such further order as may b'e proper in ihis c,ase;'The will. at tlleexplration of ten days. holdtbe' defendant until fille, is; paid' br secured, and brtngthil dElfendantbefore the court<at tilne O'CI0CK A.M.,. March 11. , r i' I 'Youngis pris9Il under this order, 'and he insists that' he has and imprisoned without 'due process of law, and therefaTe 10 vidllitiondoftheconstitution' of the United States. It is urged that JUdge, nadno ju'risdiction' of the case, because the child, of ti;ne Mrs; sued her w,a.s; an<l It has' ewr smce been, outsIde of the I1101ts of thIS I }trtbe we. have no right to o.tre9'1e"\"V'the ?f the state If he ?ad t10n of the cause, we cannot reVIew, reverse, or change hIS achon, no, matter how erroneous it may have been. There is no question but that the judge who issued the writ bad authority over habeas corpus cases, and that Young was and is in the territory over which the judge presides. i To this extent, at least, petition of Mrs. Young shows that the child was not in the state wh'en the application for the writ was macle, and that it, bad been removed therefrom by Young to avoid the execution of such order as the chancellor might make uncircu,it of favorable to his custody of the child. The order of, t:he'l;tlite says,thatYoung admitted before him that the child w&l'!held by one Artilstrong 'as his agent"and subject ,to his O,1'der. Now,ttiO:ugh tb'echild is ootin his, manual possession, it is in,his custody,and under his conti-ol, and he is within the jurisdiction. The case referred to, recently decided by the circuit court of appeals for the eighth circuit, ,in which the writ cO,I:M not fWl, to a place outside of the territorial jurisdiction of the court issuing it,is not Jikethis. In re Boles. 48'Fed. Rep. In that case the applicant for was in the penitentiary at Columbus, Ohio, in the custody of the officers 9,f that in,stitutibn. The custodians of, t}}t, prisoner were not in'the jurisdictionof the' court,and there was UO ' ,proper defendant wit4in,' the jUrisdiction. I 'presume tbatin' the decisions of the supreme oourt of
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J'EDERAL REPOBUB,

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States there bas been no ease in which the parties were situas theysl'e in the' YoungOase.The case most like the one we nave,llmong those referred to,. is' In 1'e Jackson, 15 Mich. 416-442. that cas'e'it llppea.ts that the court Of Michigan, under the of thatstat.e,can isslle of habeas cprp'llfJ, and application was made in thatQOurt for such 1&' writ in a case in which the partiessituated as, and the facts like, they are in this case. Theooutt was, equally divided in opinion; and the w-rit failed because a the judg'esdi'Cf not agree;. but the judges who thought the issu,e werE! CQOLEY and QHn,IsnANCY, so that the case,'isnot aubut the the writ should issue'are eminent, ,and, .-especteq fQr the weight of their legal opinions. One. controlling!teaSoo. for the opinion of the two judges who believed the court was withOtil)titisdictionwas that the law of Michigan in express terms con.. fi i.n 8U:Ch'.eas t.,.o.. person.s "d.e.ta.in.ed within the state;.'" . .. ,in'. .(IWhittr say; this subJect is careour' own, state unlaW,fully held m custody who .is himself witllin the jurisdiction of this court. If he is here, the wrong iis .being done here, for the wrong .is ',pm' of, is exercised." Ex parte Forbes, 1 ",rit in Y01,1og's favor, though all thatjsjnajsted qpoJ;1 were truel,\s to the state of case ,CEHk W!-rdlype main.tained .under the scope and of the .supreme court of the United CQnclusi!)J;1 is .that the petitioner's detention and llrenot, w.ithout dUf3 .process of law, or in of the or law of thf3,pnited and hia.application for a writ of is

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.GRIMM.

.. -(Dtttf'fct COllII't, 1i1. D. Mt88oUrl, E. D. Hay 21, 1_)

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No. 8,408." .

... . Ai11ndlOtment. under ltev·· St. U. s. 5 8698, for mailing letters giving Information. whereobsoene plotllres ""n obtained" is not bad because the letters, as set out in the'ind{ctment; do not in'tltemselves.sh<ht that the piotures referred to are obscene, where, theindiotmenli ,fllr£herev,erll tl!a!' the ,accufled had in his possession a larlte pictures. and tl1at ,said letters were written and deposited in the mall int.ent to give -information cOncerning such pictures, and did in fact. , .· conve,:lIuch information. S. '.' ....,. . · ". . . ' In under.said seetion, whtire the letters complained of, to a casual reader, appear. to be hallDiIEllls, the go-retnment is entitled to allege and prove by evidence thattbey In fact give information concerning obscene picture·. , or llter"ture,I,lnd were so'intended.· . '8. , .... ,Th,JndiQtm'llt bad because it charges that letters addressed respectively . Huntress and William W. Waters were intended to and did convey infortnu;Uon to Robert W. McAfee where obscene pictures Could be obtained, since it .h' iU)possible nor improbable tl1atthe names Huntress and Watera wer& UIIumed name..